Markandey Katju and the curious case of Ashok Kumar

Sam Rajappa

25-July-2014

“It is easier for a camel to go through the eye of a needle than for a rich man to enter the kingdom of god,” says the Bible. In Tamil Nadu, it is easier for a Dalit to go through the eye of a needle than to become a judge of the Madras High Court.

From pre-independence days till the 1960s, judgeship of the High Court and its Bar remained the preserve of a particular community which constituted a miniscule of the State’s population. It was unthinkable for those worthies to address a member of the Scheduled Caste as My Lord.

Retired Supreme Court judge and Press Council chairman Markandey Katju (Photo: Indian Photo Agency)

Various stratagems were adopted to keep Dalits out of the Bench or even becoming a Senior Lawyer until the DMK, under the leadership of the late Annadurai, captured power in 1967 and brought about a social reformation through the instrument of caste-based reservation in all walks of life.

Tamil Nadu is the only State in the country with 69 per cent reservation, exceeding the Supreme Court set ceiling of 50 per cent. S Ashok Kumar was selected as a district judge in 1987 on the SC quota.

Immediately an advocate by name Ziaudeen was caused to file a public interest litigation questioning his community certificate on the specious plea that he was not a practicing Hindu. The petition was dismissed by the Madras High Court in 2002. Pending disposal of the petition, he was appointed a district judge.

Ashok Kumar became the principal sessions judge, Chennai, at the turn of this millennium. On 8 February, 2001, a man called SP Shenbagamoorthy filed a complaint before Ashok Kumar that MK Stalin, then Mayor of Chennai belonging to the DMK, had amassed wealth disproportionate to his known sources of income.

Instead of waiting for a summons, Stalin appeared before the judge and filed an affidavit. An inquiry by the Directorate of Vigilance and Anti-Corruption (DVAC) was ordered by the court. The DVAC report said that no prima facie case was found and the case was dismissed.

Soon after Jayalalithaa of the AIADMK was returned to power in the summer of 2001, she got M Karunanidhi, outgoing Chief Minister and leader of the DMK, arrested in the middle of the night on 29 June, 2001.

Police dragged him out of his house and took him to Ashok Kumar’s residence at around 2 am to obtain remand. The judge castigated the police for the inhuman manner of handling Karunanidhi in violation of all norms laid down by the Supreme Court but remanded him in judicial custody in spite of the police admitting that FIR was not sent to court and the case diary extract was not available.

Press Council chairman Markandey Katju’s Facebook posting that Ashok Kumar granted bail to “that political leader” meaning Karunanidhi is far from true. Karunanidhi never sought bail. He preferred jail to bail. These two cases are often cited to stamp Ashok Kumar as a pro-DMK judge.

Ashok Kumar was made an additional judge of the Madras High Court together with seven others on 3 April, 2003, for a period of two years when Jayalalithaa was the Chief Minister, after obtaining clearances from various government agencies, including the IB.

B Subhashan Reddy was then the Chief Justice. Katju took over as Chief Justice on 28 November, 2004, and continued till 12 November, 2005, when he was made a Judge of the Supreme Court.

Ajith Prakash Shah succeeded Katju and continued till 9 March, 2009. On 27 July, 2005, seven of the eight judges appointed as additional judges on 3 April, 2003, were made permanent judges; Ashok Kumar alone was given a year’s extension with effect from 3 February, 2005. After two more extensions, he was made a permanent judge on 3 February, 2007, and transferred to the Andhra Pradesh High Court.

He completed his full term and retired on 9 July, 2009, without any complaint against him. Three months later he died. When he was made permanent judge, former Union law minister Shanthi Bushan filed a writ petition in the Supreme Court challenging his appointment because of the hue and cry created by Katju.

It was dismissed by Justice Arijith Pasayat in 2008, saying, “It is to be noted that at different points of time, starting from the point of initial appointment in 2003, successive CJs have recommended for Justice Kumar to be made permanent. That situation continued till 3 February, 2007, when the recommendation of then CJ of the Madras HC was accepted.” The CJs involved were Katju and AP Shah.

A judge must be identified with justice and nothing but justice and not with any political party, whether in power or in opposition.

Katju, in a Facebook post titled “My experiences as Chief Justice of Madras High Court,” says, “Chief Minister Jayalalithaa never interfered in filling up the post of judges and never pressurised me to recommend any name for judgeship, nor did she interfere with judicial functions in any manner.

“Throughout my stay as Chief Justice, there was never any problem as she respected the independence of the judiciary. The other political party (DMK) through their representatives put tremendous pressure on me to recommend certain names for judgeship whom I found to be totally undeserving.

“Some of these persons were never seen in courts, though technically they were enrolled as lawyers. These were obviously men of that political party which wanted to pack the Madras High Court with its men, but I refused to succumb to this pressure.”

Ruling parties trying to get their men into higher judiciary is not uncommon. It is extraordinary for an opposition party, which the DMK was when Katju was the CJ, to try to pack the High Court with its men.

That Ashok Kumar was not a favourite of Jayalalithaa was common knowledge in Tamil Nadu. No one was surprised when Katju constituted a two-member commission comprising Justices Jaisimha Babu and Lakshmanan to inquire into alleged corruption of Ashok Kumar.

The commission found the charges to be false. It was after the commission’s report that Katju approached then Chief Justice of India RC Lahoti to order a secret IB inquiry. In matters of this nature the IB takes the help of the State police. Knowing Jayalalithaa’s disposition towards Ashok Kumar, it is not surprising the IB produced the desired report to prevent the latter being made a permanent judge.

Katju’s story about a DMK minister at the Centre informing Prime Minister Manmohan Singh that his party would topple the government unless Ashok Kumar was made a permanent judge is pure fiction.

What forced Manmohan Singh to ask the CJI to reconsider the collegium’s decision not to confirm Ashok Kumar as permanent judge was a threat by 18 SC/ST MPs cutting across party affiliation to pull down the UPA government if justice was denied to the latter. Everything is on record.

It is true the DMK made hard bargain and even held up government formation until it was allotted what are popularly called ATM portfolios. During its entire nine-year partnership with the Congress in the UPA, only once it threatened to pull out. That was over the civil war in Sri Lanka. When it was made clear to the DMK that the Congress was determined to help Sri Lanka annihilate the LTTE, it climbed down.

If Katju had any specific information about any corrupt deed of Ashok Kumar either during his stint as additional judge of the Madras High Court or as permanent judge of the AP High Court he should have brought it out in the open and given the delinquent judge an opportunity to defend his name.

It is unbecoming of a former Supreme Court judge to tarnish the image of a high court judge after he is dead and gone.

Arun Jaitley was not off the mark when he said as leader of the Opposition in the Rajya Sabha last year, “Though initially known for his scholarship, Justice Katju was never a conventional judge. His utterances, both during his tenure as a judge and thereafter, are clearly outlandish. Dignified comment is alien to him.

The chairman of the Press Council discharges a statutory job. His job requires fairness, impartiality and political neutrality. Additionally, a judge, whether sitting or retired, is expected to conduct himself with sobriety, dignity and grace. He cannot be loud, crude, and outlandish or behave like a megalomaniac.”

Sam Rajappa is Consulting Editor of The Weekend Leader